MAJ Hasan Firing Defense Counsel

In a move that shouldn’t be all that surprising to informed observers, MAJ Nidal Hasan has moved to fire his military lawyers and proceed pro se in his own defense in his Ft. Hood shootings court-martial.  The Austin-American Statesman reports, here:

The request will be taken up by military judge Col. Tara Osborn at a May 29 pre-trial hearing. Because of the request, the planned selection of a jury — or panel, in military parlance — has been pushed back from May 30 to June 5. The trial is scheduled to begin by July 1.

H/t PC

CCR and Others Take Transparency Fight to US District Court

WaPo reports, here:

The Wiki[shhhh] organization and a handful of journalists asked a federal judge Wednesday to order greater transparency in the court-martial of an Army private who has acknowledged sending reams of classified document to the Wiki[shhhh] website.

The Center for Constitutional Rights, representing Wiki[shhhh] and its founder Julian Assange, filed the petition in U.S. District Court in Baltimore. It seeks an order requiring public access to all documents in the court-martial of Pfc. Bradley Manning.

Military Sexual Assault Issue Leads to UCMJ Change Proposal

From AP (via Yahoo News, here), the HASC Military Personnel Subcommittee voted on changes to the UCMJ Wednesday:

Members of a House panel angry over the growing epidemic of sexual assaults in the military took a key step toward tackling the problem by passing legislation Wednesday that would strip commanding officers of their longstanding authority to unilaterally change or dismiss court-martial convictions in rape and assault cases. Lawmakers believe the revision will lead to a cultural shift and encourage victims to step forward.

Here is the link, courtesy of PC, to the proposed chagnes, starting at page 12.

And finally, a little history, minutes of HMS Bounty mutiny court-martial discovered, see Daily Mail report here.

Interesting NPR piece on the Invisible War’s Myla Haider here. 

The response to transparency and legality concerns with the US drone policy appears to be more symbolic than real, so says Eric Schmitt at the NYT here.

7 months confinement and a BCD in latest Lackland instructor case. This instructor had consensual sex with two recruits and lied to investigators according to the report out of San Antonio here.

[UPDATE]  I forgot to add yesterday’s news about the military judge, COL Tara Osborn, rejecting MAJ Nidal Hasan’s attempt to plead guilty . . . because one of the not so bright provisions of the [UCMJ] prohibits it. LA Times report here.  COL Osborn also appears to have ruled on several “standard” capital court-martial motions. [My apologies for earlier pinning all the blame for the SNAFU in capital pleas on the Executive Branch; Congress created the mess in UCMJ, Art. 45(b).]

The Austin American-Statesman reports, here, that the MAJ Nidal Hasan trial will begin at Ft. Hood on May 29, 2013.  After four weeks of voir dire and panel selection, “testimony” is scheduled to begin July 1, 2013. So I assume opening arguments are the last week of June.

More Manning coverage including a detailed article from the NYT, here, that also investigated the voicemail PFC Manning stated he left for the NYT. The NYT also notes, contrary to some early reports, that Manning stated in the providence inquiry that he was turned off by the WaPo because they said they would have to review the material before committing to publish it. Call me old fashioned, but that changes my opinion of Manning’s confessed motives. CNET coverage (which is always a little different) here.

Okinawa rape trials sentence former sailors to 10 and 9 year sentences. See AP (via YahooNews) report here.

Hearing on the defense motion to dismiss in the trial of MAJ Nidal Hasan is re-scheduled until Feb. 28, 2013.  PAO release here.

An alert reader called our attention to this Fort Hood press release announcing that COL Tara Osborn has scheduled an Article 39(a) session in MAJ Hasan’s case for 18 December.

Houston Chornicle reports here that the Army has named COL Tara Osborn as the militayr judge to preside over the MAJ Nidal Hasan court-martial after the ouster of COL Gross.  See our prior coverage here and here.  COL Osborn presided over the SGT Joseph Bosicevich capital trial and non-capital sentencing in 2011, see Marine Corps Times stopry here.  More recently she presided over the case of SSGT Van Bockel, one of the accused in the PVT Chen suicide related cases.  See coverage here (CAAFlog) and here(FayObs).  She was also the Chair of the Military Courts Committee of the American Bar Association’s National Conference of Specialized Court Judges (now the District 4 representative after some re-organization). She was also the subject of a CAAF writ in the Bozicevich case, coverage here and DJ entry here.

It’s posted on CAAF’s website here.  Hasan v. Gross, __ M.J. __, Nos. 13-8011/13-8012/AR (C.A.A.F. Dec. 3, 2012) (per curiam).  Finding that a reasonable person would doubt the military judge’s impartiality, CAAF unanimously ordered the military judge’s removal from the case due to the appearance of bias.  As a result, CAAF vacated Judge Gross’s order to forcibly shave MAJ Hasan, as well as the six contempt citations.

CAAF explains that “the command, and not the military judge, has the primary responsibility for the enforcement of grooming standards.  . . . A military judge’s contempt authority is directed toward control of the courtroom.  Although the military judge here stated that Appellant’s beard was a ‘disruption,’ there was insufficient evidence on this record to demonstrate that Appellant’s beard materially interfered with the proceedings.”  CAAF concluded that “taken together, the decision to remove Appellant from the courtroom, the contempt citations, and the decision to order Appellant’s forcible shaving in the absence of any command action to do the same, could lead an objective observer to conclude that the military judge was not impartial towards Appellant.”

CAAF ordered the “appropriate authority” to “deail a new military judge in this case.”

PFC Manning Speedy Trial Hearing Coverage
Firedoglake is liveblogging, here, this week’s PFC Manning speedy trial motion hearing. The Special Court-Martial Convening Authority testified at the hearing yesterday. Funniest update:

UPDATE – 12:30 PM EST According to tweets from @WikiLeaksTruck, a guard at the visitor’s gate to Fort Meade has been telling public attending the hearing that Manning should be taken out back and shot.

More on the plea offer from the defense, here.

Hasan Appeal Filed
Hasan has filed his appeal at CAAF, see here, for whatever that is worth. OFL posted the pleadings in this post yesterday.

BGEN Sinclair Closing Arguments
The Fayetteville Observer, here, has a summary of the last day of the Art. 32 hearing for BGEN Jeffrey Sinclair. Closing arguments were, as usual, brief. Though a 90 minute closing argument wouldn’t have been brief in any 32 I ran. I would have brought out the old wrap it up signal at about 30 min.

USAFA Sexual Assault Case Art. 32
More on the Art. 32 in the latest USAFA sexual misconduct case for AP (via AF Times) here.

[Sorry for all the technical glitches, WP is having a moment this AM]

Lots o’ military justice news, but not a lot o’ No Man time.  Alright, here we go.  The short, short version. (Do you? Yes. Do you? Yes. Good. You’re married. Kiss her!)

• SSGT Bales hearing updates:  Here (KING 5 News, the accused’s wife’s perspective), here (Seattle Times), here (LA Times).
• SGT Hurst court-martial in PVT Chen suicide:  Here and here (Fayetteville Observer).
• Brig. Gen. Jeffrey A. Sinclair Art. 32 hearing:  Here (Marine Corps Times) and here (ABC News)
• Lt. Col. James H. Wilkerson, former Aviano IG, sentenced in his court-martial:  Here (Air Force Times).
• MAJ Nidal Hasan and Ft. Hood shooting victims:  Here (Reuters, victims sue DoD) and here (AP via FoxNews).

Here is Monday’s Daily Journal entry noting the stay in MAJ Nidal Hasan’s case has been granted:

INTERLOCUTORY ORDERS

No. 13-8009/AR. Nidal M. HASAN, Appellant v. Gregory GROSS, Colonel, U.S. Army, Military Judge, Appellee. CCA 20120876. On consideration of Appellant’s motion to stay proceedings, it is ordered that said motion is hereby granted pending further order of the Court.

Here and here is some of the news coverage of the stay and proceedings to come.

From CAAF’s daily journal for Friday, October 19, 2012:

MISCELLANEOUS DOCKET – FILINGS

Misc. No. 13-8009/AR.  Nidal M. HASAN, Appellant v. Gregory GROSS, Colonel, U.S. Army, Military Judge, Appellee.  CCA 20120876.  Notice is hereby given that a motion to stay proceedings was filed by Appellant on this date.

The Army Court of Criminal Appeals today affirmed a military judge’s order that MAJ Nidal Hasan can be forcibly shaved before appearing in a military courtroom.  Here is the en banc, but unpublished, opinion of the court in Hasan v. United States et al, Docket Nos. Army Misc 20120876 and 20120877 (A. Ct. Crim. App. Oct. 18, 2012):

In conclusion, we hold that petitioner is not entitled to extraordinary relief in the nature of a writ of prohibition. The military judge did not commit clear error in determining petitioner’s desire to appear unshaven in court was not based on a sincerely held religious belief at this time. Further, even if petitioner had succeeded in demonstrating his wearing a beard in court was based on his sincere religious beliefs, compelling interests justify the military judge’s order and no lesser restrictive means are available to accomplish these interests. Accordingly, the Petition for Extraordinary Relief in the Nature of a Writ of Prohibition and the Petition for Extraordinary Relief in the Nature of a Writ of Mandamus are DENIED

Four judges concurred in the opinion of Senior Judge Yob (Cook, Gallagher, Haight, and Martin), three judges took no part in the decision (Ayres, Aldykiewicz, and Kraus) and two judges dissented (Kern and Burton). 

The dissent would have actually disqualified the military judge for wading into this mess, writing:

In the military justice system, the military judge wears a uniform and holds authority as a leader as well as a judge. He must remain keenly aware of not only the authorities he holds, but how orders executing those authorities are viewed and options available to him, always keeping in mind perceptions regarding his impartiality. The military judge utilized his contempt authority, which was a proper method to try to compel petitioner to comply with uniform requirements. When those attempts failed, he not only disregarded an avenue customarily used in enforcing uniform requirements-utilizing the chain of command to enforce compliance with uniform standards-but he also issued his order for the  forcible shaving at the behest of the government. Like removal, such an invasive order by the military judge should only be utilized if there is a showing of material interference with the conduct of the proceedings. . . .

Without compelling the government to act, the military judge’s decision to order the forced shaving at the government’s request was inappropriate as it compromised his impartiality. As such, I would grant petitioner’s writ of prohibition, invalidating the military judge’s order, and also disqualify the military judge from further participation in the proceedings because he took an action that reasonably put into question his impartiality.

[Sorry for earlier versions, technical difficulties]

H/t KAG

Local news outlets (here and here) report that [ACCA] will hear oral arguments on the forced shaving writ in the MAJ Nidal Hasan court-martial.  That would be the day after the CAAF hears arguments regarding access to the PFC Bradley Manning trial.  [deleted] [Update--Sorry, I am half asleep, been a long week.  Thanks to all who pointed that out]

[Update #2]:  From the Fort Hood Press Center, here:

The Army Court of Criminal Appeals issued the following orders in United States vs. Maj. Nidal M. Hasan Sept. 21 after defense counsel for Hasan filed two appeals with that court this week.

The court ordered the case stayed until further notice and the response to the defense appeals must be filed by Sept. 28.

Defense counsel filed two appeals to determine if the federal law known as the Religious Freedom Restoration Act allows Hasan to keep his beard during his court martial.

The first appeal seeks to overturn past contempt holdings against Hasan and stop any future contempt proceedings over Hasan wearing a beard in court.

The second, closely related appeal is whether the RFRA allows Hasan to wear a beard while in military uniform at his court martial.

The Army Court’s Hearings page, here, has not been updated to reflect the argument.

Thanks to our alert readers for calling our attention to media reports that Colonel Gregory Gross, the military judge in the Hasan case, has orderd that MAJ Hasan be forcibly shaved.  (Killeen Daily Herald coverage here.)

Under CAAF’s previous ruling on MAJ Hasan’s petition for extraordinary relief, MAJ Hasan will “be afforded the opportunity to file a petition for extraordinary relief with the United States Army Court of Criminal Appeals prior to the execution of the order” that he be forcibly shaved.  Hasan v. Gross, __ M.J. __, No. 12-8032/AR (C.A.A.F. Aug. 27, 2012).

More prosecutions in PVT Chen suicide

The Fayetteville Observer reports here:

[SPC] Thomas Porter Curtis . . . will be the fourth soldier to stand trial in [PVT Danny] Chen’s death.

Chen, 19, of New York, committed suicide Oct. 3 at Combat Outpost Palace in Afghanistan. . . .

 Curtis is charged with negligent homicide, reckless endangerment, six specifications of maltreatment of a subordinate, four specifications of assault and two specifications of violation of a lawful general regulation. . . .

He’s accused of using racial slurs against Chen and of throwing rocks at him, kicking him and ordering him to stand as though he’s sitting in a chair and then striking him in the thigh.

Gitmo Commission hearings delayed due to Tropical Storm Isaac

Here is Julie tate’s report at the WaPo on the latest delay in the trials of the 9/11 conspirators.  Tate writes:

A tropical storm gathering strength in the Caribbean forced the U.S. military on Wednesday to postpone the latest hearings for the five detainees charged in the Sept. 11, 2001, attacks, as officials evacuated staff members and others from Guantanamo Bay

Beard-gate rolls on [updated]

Here is the Houston Chronicle’s report on the brief filed on behalf of the military judge in the MAJ nidal hasan court-martial:

The attorneys, in a document filed on behalf of Col. Gregory Gross, contend that forcibly shaving Maj. Nidal Hasan would not violate the American-born Muslim’s religious freedoms and said it is similar to “and no more invasive than” a judge’s right to restrain a defendant who is disruptive during a court-martial.

“Forced shaving is not a novel concept in the military,” military attorneys said in the judge’s response filed with the U.S. Court of Appeals for the Armed Forces. They cited no specific cases of other soldiers being forcibly shaved. “Army regulations expressly authorize nonconsensual haircutting and face-shaving for recalcitrant incarcerated soldiers. … If the judge has authority to bind and gag a disruptive accused (soldier), then certainly he has authority to forcibly shave (Hasan).”

I am not seeing the disruptiveness analogy between gagging and shaving, other than that they both occur on the face.  Anyone have a copy of the “governemnt” brief?  Send it to noman@caaflog.com.  Update:  Here is a link to the government brief.   H/t Anon